Plank v. PlankPlank v. Plank
Preface.
Do not put me to ‘t,
For I am nothing if not critical.
Othello.
Introduction.
Evеryone knows that the rules of court must be construed “to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”
Not simply a minuet scored for lawyers to prance through on pain of losing the dancе contest should they trip. Those Rules have a purpose, one of which is to assist in the processing of the increasing number and complexity of cases....
[Stone v. Old Bridge Tp., 111 N.J. 110, 125, 543 A.2d 431 (1988) (Clifford, J., dissenting)].
In this action, defendant seeks reconsideration of her application — made at trial — to allow the presentation of evidence which would permit her to resume her maiden name pursuant to
Procedural Posture of the Action and the Factual Background.
As the first movement in this orchestrated divorce proceeding, plaintiff filed a complaint for divorce on November 28, 1989. Plaintiff sought dissolution of a 19-year marriage on the ground of desertion,
... in order to be heard on the issues indicated below:
Custody of Children; Division of Property; Visitation; Counsel Fees; Alimony; Costs; Maintenance.3
On January 11, 1990, the action was scheduled for trial. The matter had been previously denominated as “settlеd.” The purpose of the trial date was to enable the matter to proceed to disposition uncontested, with the October 16, 1989 property settlement agreement being incorporated into the judgment of divorce.
The hearing was conducted, at which time plaintiff proved his entitlement to a judgment of divorce under
At the hearing, for the first time, defendant — through her attorney — requested an “amendment” to enable her to present proofs so that the judgment of divorce might validate her right and desire to resume her maiden name.4 The court denied the application to “amend” on the basis that there were no extant pleadings that could be amended to permit defendant to proceed on her embryonic affirmative claim for a name change. The court held that the appearance was limited in nature, and that because no answer and counterclaim had been filed seeking affirmative relief under
Immediately after receiving this bad news, defendant sought to bootstrap herself into a position to receive the name change by reliance upon plaintiff‘s prayer for relief in the complaint which stated:
WHEREFORE, Plaintiff demands judgment of this Count [sic] as follows:
* * * * * * * *
F. For such other relief as the Court deems just and equitable.
Again, the court denied the application on the basis that plaintiff‘s pleading provided no standing for defendant‘s affirmаtive claim, and, furthermore, the catch-all prayer for relief was an inappropriate platform from which to launch a name change. The court expressed its opinion that if defendant wanted a name change at that late date, she could apply for this relief under
Ultimately, a judgment of divorce was signed on January 11, 1990, in which the provision for defendant‘s name change (previously inserted by plaintiff‘s attorney‘s word processor) was excised by the court.
The within motion was filed on January 17, 1990 and seeks “reconsideration of the Court‘s denial of defendant‘s request to resume the use of her maiden name.”5 For the reasons which follow, the court concludes that its original instinct was correct, albeit for a reason not fully expressed at the time of the uncontested trial. Accordingly, defendant‘s motion for reconsideration is denied. Her motion, however, under
I. The Problem.
Nothing in the litigation process should happen by accident or afterthought. The modes of thought and discipline which lawyers are supposed to learn during their legal education must continue to be brought to bear after years of practice. Just as courts may not provide advisory opinions, In re Judges in Chancery, 101 N.J. Eq. 9, 137 A. 151 (Ch. 1927), they ought not fill a gap created by a party‘s representative in the litigation process.
The danger of permitting courts to act where the parties themselves seek no affirmative relief is to encourage a system which will be left to the whim of the power in charge.6 Take away rules, and instead of courts of law, we will have only anarchy. If the court makes a new rule for each case, based upon expediency, or upon the judge‘s individual sense of what is right and what is wrong for that case and upon nothing else, we will have a society governed by caprice, instead of a society governed by law. No one would be happy, and none of us would be safe in such a society.
But, of course, courts do not exist for the lawyers; they do not exist for the judges. They exist for the litigants and litigants are entitled to the best possible procedure that human ingenuity can devise. Requesting an “amendment” on the day of trial to permit a name change can hardly be the best procedure devised. The business of the courts cannot be conducted at the public‘s expense on the haphazard basis that defendant desires. Indeed, both legislation and rules of court provide a route for the processing of claims and the resolution
Defendant‘s results-first, rationale-to-follow form of argument is the antipathy of law. There are no rules, only afterthoughts. But, then, what is wrong with defendant‘s approach? Aren‘t results more important to litigants than processes? Isn‘t the insistence upon fidеlity to the rules and notice pleading an arid exercise that ignores human pragmatism? Shouldn‘t “social justice” triumph over adherence to logical systems? The court‘s answer is simply that legal reasoning is an intellectual enterprise essential to the preservation оf our system of justice. It fosters the notion that judges must decide issues on the basis of a body of rules, principles, and major premises independent of a judge‘s or litigant‘s personal preferences. To do otherwise is to imperil that delicate balance known as the sеparation of powers.
A name change may be accomplished by no formal action at all. At common law, an adult or emancipated person is free to adopt any name, as long as an illegitimate reason is not at its core. Nevertheless, thе Legislature has created statutory paths by which a person may receive a judicially-validated and recordable name change.
The Court, upon or after granting a divorce from the bonds of matrimony to either spouse, may allow either spouse to resume any name used by the spouse before the marriage, or to assume any surname. [Emphasis supplied]
Thе recent amendment has vastly expanded the utility of the statute, to the point that the court wonders why persons
The court concludes that a judicially-validated name change under either statute is a cause of action. It is not an inherent, free-floating entitlement that may be actualized by the invocation of magic words. To qualify for the relief available by either statutе, a party must affirmatively seek such relief. The only way that relief may be obtained is by filing a pleading requesting such relief, or amending a pleading to request it. In the instant case, defendant stands before the court unadorned of any pleading.
A “pleading” is not simply every piece of рaper filed in an action.
Orders, petitions, motions (Cf.
If defendant desires a court-sanctioned name change, she was required to assert a claim therefor in a pleading, or request an amendment of an extant pleading under
II. The Remedy.
Nevertheless, the court recognizes that defendant is not without a speedy remedy.